Due Process Values(i



Due Process Values(i.e. policy):

• Equality

• Fairness

• Procedure determined by complexity, consequences, innacuracy of determination

• Think about ex ante vs ex post hearings and the reasoning behind that

• Importance of stare decisis

• Balancing of time, accuracy and efficiency

N: procedure chooses certain values over others out of necessity

Sources of Authority:

• Constitution

• Judiciary (one supreme court and inferior courts established by congress, as enabled by article 3)

Hierarchy of Authority:

Supreme Court Constitution

Courts of appeal Statutes

District courts

Hamdi v. Rumsfeld- U.S. citizen held as an enemy combatant and not given due process rights used the:

Mathews Test- mathews v. eldridge weigh the individual’s interest against the government’s interest, cost and burden of efficient adjudication

Notice and an Opportunity to be Heard

The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United States Constitution deny effect to adjudications unless the parties to be bound were given prior notice and an opportunity to participate

Mullane v. Central Hannover Bank & Trust: A financial interest was sold or transferred or something, the bank published notice, knowing there were many unknown parties that would be affected, but failed to contact in the normal way people whose information was known. The Court ruled that constructive notice for unknown persons is constitutionally OK, but that constructive notice for known persons is unconstitutional. The case was reversed and remanded for further proceedings

-Does posting on door constitute notice?

Greene v. Lindsey- Court held this was violative of due process, because posting was unreasonable under the circumstances (door posting case)

FRCP 4

In federal actions, a plaintiff may serve process upon an individual, corporation or association by:

(1) delivering the summons and complaint to the individual personally;

(2) leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein;

(3) delivering the summons and complaint to an agent authorized by appointment or by law to receive service of process.

Waiver of Process:

FRCP 4 provides incentives for a defendant to agree to waive formal service and instead accept service by mail.

-Upon notice of the commencement of the action and a request for waiver of service from the plaintiff, a defendant who so agrees is granted an extended time within which to answer – 60 days instead of the 20 days granted when process is formally served.

- FRCP 4 imposes upon the defendant “a duty to avoid unnecessary costs of serving the summons,” and therefore, failure to accept process by mail subjects the defendant to liability for costs of service as well as attorney’s fees incurred in any motion to collect the costs of service.

National Development Co. v. Khashoggi- left at one of his usual place of abode with housekeeper, court decides that since he was physically present, that was sufficient

-There can indeed be more than one dwelling house or usual place of abode

Potential Procedural Defects:

1. Method, meaning service of process (e.g. posting)

2. Process itself (e.g. expired summons, unsigned complaint, etc. meaning the pieces of paper have a problem with them)

3. Power of court (jurisdiction?)

The Adversarial Legal System:

Lassiter v. Department of Social Services- Court found that due process does not require appointed counsel in parental termination hearings, but that the trial court should evaluate the appropriateness of appointing counsel on a case-by-case basis

Matthews test:

Private interest vs Government’s interest

Risk of error? Cost?

Lassiter v. Department of Social Services- no right to counsel per se, but judge should give counsel on a case by case basis

**(using mathews test, court decides when loss of personal liberty is not at stake, there is a rebuttable presumption that you are not constitutionally entitled to counsel)

Walters v. National Association of Radiation Survivors- veteran’s fund benefits case, no paid lawyers allowed, using mathews test, we see a high private interest, a not so high government interest, risk of error is relatively high, but the cost is huge (contingency fees, taxpayer dollars for the now complicated process, and the fact that if the system became more adversarial, everyone would need a lawyer)

Enter jurisdiction

Jurisdiction: legal power or authority, from L. jurisdictionem (nom. jurisdictio) "administration of justice, jurisdiction," from jus (gen. juris; see jurist) "right, law" + dictionem (nom. dictio) "a saying." Meaning "extent or range of administrative power" is from c.1380.

Capias ad respondendum (Latin: "that you take to hear the judgment") is a writ issued by a court to bring the defendant, having failed to appear, to hear the judgment to be imposed

Quasi in rem jurisdiction- (they have your property, not you, so they can hold your property hostage in order to perfect a judgment against your property) A quasi in rem action is commonly used when jurisdiction over the defendant is unobtainable due to his/her absence from the state. Any judgment will affect only the property seized, as in personam jurisdiction is unobtainable.

??Pennoyer v. Neff- lawyer gets default judgment after publication of summons, Is given an order to seize OR property, though Neff is in CA, lawyer assigns property to Pennoyer, later Neff files in federal court seeking to evict Pennoyer, lack of personal jurisdiction. Supreme court rules that OR did not have power over Neff because he was not physically within the state

In rem jurisdiction: have jurisdiction over property because the property (or status, such as marital status) is the primary object of the action, rather than personal liabilities

Quasi in rem jurisdiction: the court may lack personal jurisdiction over the defendant, but it has jurisdiction over the defendant's property. The property could be seized to obtain a claim against the defendant

Jurisdiction by consent: anyone can consent to give a court personal jurisdiction over them

n. Special appearance: where you show up for the sole purpose of contesting jurisdiction

Personal Jurisdiction

Rule 4(k) 1 (then check long arm statute, then check due process)

Territorial limits of effective service

1. Service of a summons of filing of a 4(e) waiver is sufficient to establish personal jurisdiction if:

a. The forum district’s state allows it; or

b. The defendant is a joined party (per rules 14 and 19) and is served within 100 miles from where the summons was issued; or

c. The defendant is subject to the federal interpleader jurisdiction (per 28 isc 1335); or

d. It is authorized by a U.S. statute

n. Rule 4k1a, if the state courts in which the federal court sits could assert personal jx over the d (typically through a long arm statute), then federal courts may do so as well, hence the rule

n. Although personal jurisdiction for the federal courts would ordinarily look at 5th amendment, courts apply 14th amendment and minimum contacts rules because we’re usually looking at rule 4k1a, and therefore stepping into the state’s shoes

Minimum Contacts Rule:

International Shoe Co. v. Washington-Supreme court rules WA has personal jurisdiction, sets forth the rule that person who is not present in the forum have certain minimum contacts with the state, such that maintenance of the suit does not offend notions of fair play and substantial justice (the suit must arise out of these contacts)

Jurisdiction

1. Personal

a. Domiciliary

b. Incorporated

c. Served in the forum (“gotcha”)

2. Property

a. In rem

b. Quasi in rem

3. Out of State

a. Consent

b. Minimum contacts

|Minimum Contacts - The Four Principles of International Shoe |

|1)  Jurisdiction is permissible when the defendant's activity in the forum is continuous and |

|systematic and the cause of action is related to that activity. |

|2)  Sporadic or casual activity of the defendant in the forum does not justify assertion of |

|jurisdiction on a cause of action unrelated to that forum activity. |

|3)  A court may assert jurisdiction over a defendant whose continuous activities in the forum are|

|unrelated to the cause of action sued upon when the defendant's contacts are sufficiently |

|substantial and of such a nature as to make the state's assertion of jurisdiction reasonable.  |

|("general jurisdiction") |

|4)  Even a defendant whose activity in the forum is sporadic, or consists only of a single act, |

|may be subject to the jurisdiction of the forum's courts when the cause of action arises out of |

|that activity or act.  ["specific jurisdiction"] (Friedenthal § 3.10) |

General jurisdiction: substantial and continuous contact

Specific jurisdiction: isolated or irregular contacts, or continuous and systematic contact Arises from the contacts themselves

-Personal jurisdiction in the United States is divided into two categories. A court may exercise jurisdiction if it finds either general or specific jurisdiction over a party. General jurisdiction exists when a party has extensive ("continuous and systematic") dealings with the forum administered by the court. Specific jurisdiction is present when a party performed some activity in the territory without which the present action before the court could not have been brought

World-Wide Volkswagon Corp. v. Woodson- Woodson is the judge who exercised personal jurisdiction over car wholesalers and distributors whose car sold in NY was driven and caused an accident in OK. No minimum contacts (guarantees 14th amendment rights to have process that doesn’t violate notions of “fair play and substantial justice”)

-Why is forseeability of product entering forum insufficient? It’s really whether or not one should reasonably expect at the time they engaged in the behavior that they might be haled into the forum for a lawsuit

|Shoe test= |

|Minimum contacts;+ |

|Fair play and substantial justice (POLICY HERE) |

| Contacts Themselves: |

|Continuous and systematic or substantial (quality of contacts) |

|Relatedness of contact to the cause of action (nature of contacts) |

| |

|Quality and Nature of Contacts/Fair play and Substantial Justice: |

|Defendant’s purposeful availment of benefits/protections of the forum state |

|Forseeability of being subject to suit in forum state |

Asahi Metal Industry Co. v. Superior Court- “stream of commerce plus” – court held no minimum contacts, however it wouldn’t be fair to find jurisdiction because it’s a foreign defendant, Cali doesn’t really have a strong interest in this, huge burden to have it here.

n. 4 of 9 said no minimum contacts, but 8 of 9 said it’s not fair so note that this case was decided this way because it’s not fair

n. fact that asahi did not put items in stream of commerce itself is somewhat important. Goes back to forseeability is not enough

Calder v. Jones- A defendant can be liable for something done without the forum state that has an effect within the forum state (national enquirer case, D subject to personal jx in Cali for a defamatory article written in FL because P lived/worked there and article was circulated there, it was more or less targeted)

Calder effects test: where is it likely to have the damaging effect?

Keaton v. Hustler Magazine- In selling magazine, D purposefully circulated magazines in the forum state, therefore state had personal jx

Exercising personal jurisdiction:

1. Domiciliary (permanent resident, only one domicile)/corporation/resident

2. Waived by lack of objection

3. Consent

4. Served in the forum (nonresident served in forum, Burnham split, half contacts half presence)

5. Minimum contacts (nonresident served outside of forum)

Objecting to personal jurisdiction:

1. Special appearance (aka direct attack): allows you to make an appearance to dispute only personal jx, but cannot make arguments on the merits or else you will be deemed to have waived objection to personal jx

a. Exception: frcp 12(b)2 says you can argue against personal jx and other things without waiving objection (must be raised in answer or else pre-answer motion before anything else)

b. Note: some states have adopted frcp rule

2. Challenge in enforcing court (aka collateral attack): Under the full faith and credit clause (article 4 §1), home state has to honor judgments from other states, but the court will always look into whether the other court had jx

a. Exception: can’t challenge personal jx twice, so if you made a special appearance and lost, you can appeal, but not contest at enforcement

Property jurisdiction

1. Property related to the suit (in rem)

2. Property unrelated to the suit (quasi in rem)

Shaffer v. Heitner- Court basically does away with quasi in rem jurisdiction (overruling pennoyer), saying that getting someone’s property is the same as exercising personal jurisdiction. Now we need property, plus minimum contacts (Delaware possesses some executive’s stock with quasi in rem jurisdiction) p. 153

Burnham v. Superior Court- see this again… glannon says this case reaffirms gotcha jx

Scalia opinion (4) under shoe, minimum contacts can be substituted for physical presence, however, physical presence still works if the state wants it to. Shaffer test doesn’t apply because it was for an absent defendant, not a present defendant (guy visiting his kids in Cali, wife serves him there, court holds jurisdiction)

Brennan opinion (4) says burnham has minimum contacts because he availed himself of the benefits/protections of that state and was physically there, he wants to do case by case

Personal Jurisdiction

Pavlovich v. Superior Court (2002)- Court may exercise specific jurisdiction over a defendant if 1. Purposeful availment, 2. Controversy arises out of contacts with the forum, and 3. No violation of fair play and substantial justice. (guy posts instructions for cheating dvd anti copy stuff, company that licenses the source code sues in cali, court holds no jurisdiction) allon levy case

n. failure to oppose jurisdiction up front is effective consent (this is how you commit malpractice *snaps* like that)

“it’s so much easier to win on procedure than the merits” prof. hsieh

Pavlovich- turns on… purposeful availment of the forum itself versus forseeability (of damage caused, of being haled into court, of damaging an industry based in the state?)

Personal Jurisdiction/Diversity Jurisdiction

P189 (waiving due process is really just a version of consent)

Carnival Cruise Lines v. Shute- Shute is about consent. Shute consented to FL as the forum, there is no bad faith, no fraud, no lack of notice, etc. A “heavy burden of proof” is required to set aside this clause (booked a cruise in WA, got hurt on cruise, forum selection clause says sue in FL, court holds FL)

-relies on Bremen v. Zapato- U.S. court declines jurisdiction because they had agreed disputes would be resolved in England, court decided generally, they don’t want to interfere with parties who freely contract and bargain for something like this (contract for transport of goods between a German company and a us company to somewhere in the Mediterranean)

National Equipment Rental, Ltd. v. Szukhent (1964)- Agent is some combination of being present and consenting (contract dictates that process is served on some random third party in NY, D is sued in NY and process is served on agent)

n. court is not applying International Shoe min contacts test in this case, instead finds personal jurisdiction another way

Personal jurisdiction is consented to if not fought at the outset, up to the parties to raise the issue. Subject matter jurisdiction can never be waived, it can be brought up post trial, during trial, whenever. Does not belong to parties either, can be raised by anyone.

Number of no jx

contacts

jx

Contacts suit arises from

Subject Matter Jurisdiction

Limits on State Jurisdiction

1. Constitution

2. FRCP

3. Long arm statute

Limits on federal jurisdiction

1. Constitution Article 3 §2 (cases between states, citizens of different states, between citizens and aliens, involving foreign ministers and consuls, admiralty and maritime cases, cases arising under federal constitution and federal law, and a few others)

2. Congressional statutes (e.g. 28 USC § 1331-1332)

n. state courts=general jurisdiction, federal courts=limited jurisdiction

28 USC § 1332-congress limits jurisdiction of courts beyond what constitution says

n. Exceed 75,000 and diversity

§1331 gives federal jurisdiction for civil actions arising under the constitution, laws, or treaties of the U.S.

§1331 Current Test for “arising under” federal law

Franchise Tax Board v. Construction Laborers Vacation Trust (1983)- Modern Rule

Lower federal courts can hear cases only where we have

1. A well-pleaded complaint; and

2. The plaintiff’s right to relief depends on resolution of a substantial question of federal law; or

3. Federal Law creates the cause of action (e.g. suing under some federal act)

§1332 gives federal jurisdiction in state law claims because of the status of the parties themselves (i.e. diverse parties) and the status of the claim (i.e. more than 75k)-exception: probate and family law

n. When more than one plaintiff, can combine but not add to more than 75k. If one P’s claim is greater than 75k and the other P is not, then the two joined together can bring a diversity jx suit?

n. Might be looking into diversity of parties for the purposes of determining personal jurisdiction, subject matter jurisdiction under §1332, or venue. KEEP THESE SEPARATE

7 us 267 (strawbridge v curtis), rule for complete diversity

Mas v. Perry (1974)- All parties must be diverse. Residence is established by a person’s intent to reside. Court refuses to apply general rule that wife becomes a domicile of husband’s state, because it would be absurd in this instance to make her a French citizen (landlord puts two way mirrors in bedroom, argues wife is not diverse from him because she went to school and lived in the state)

n. look to citizenship status at the time the lawsuit is filed

In diversity actions, domicile can be established only by:

1. Residence in the new domicile; and

2. Intent to permanently reside

Tanzymore v. Bethlehem Steel Corp.- Plaintiff has the burden of alleging a basis for federal jurisdiction, and he fails to do so (seeking damages for work related injury, sues in federal court, D asserts no diversity)

Louisville & Nashville R.R. Co. v. Mottley (1908)- For 1331 Jx, the natural plaintiff must have been able to assert a federal cause of action, meaning defenses or preemptive responses are insufficient (in consideration for waiving claims for injuries, railroad gives mottley’s free passes to be renewed every year, then reneges because a law is passed that says no more unlimited passes, mottleys assert an anticipated constitutional defense to D’s defense) *Hard and fast rule: If the “well-pleaded complaint” does not contain a federal question, no federal jurisdiction

n. The well-pleaded complaint, meaning that if the complaint doesn’t explicitly say federal question, but raising a federal question would be required to prove the elements, then the complaint is not well-pleaded, but if it were then we would have 1331 jx, and therefore it meets the rule

Venue

28 USC 1391 n. trim this down later

(a) A civil action where jx founded only on diversity

(1) If d’s are all from the same state, where any defendant resides

(2) Where the thing happened or the stuff is

(3) If 1 and 2 don’t yield any venues, we can go where any defendant has personal jx

(b) A civil action where jx is not founded solely on diversity

(1) If D’s are all from the same state, where any defendant resides

(2) Where the thing happened or the stuff is

(3) If 1 and 2 don’t yield any venues, we can go where any defendant can be found

(c) Corporation defendants reside in the district where they have personal jx. In the case of more than one district within a state, treat them as different states and the corp can be hauled in anywhere their contacts give the court jx. If no district has personal jx over the corp, the one with the most significant contacts gets jx.

(d) An alien may be sued in any district.

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

(1) a defendant in the action resides,

(2) Where the thing happened or where the stuff is, or

(3) If real property is not involved, the place the plaintiff resides. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.

The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.

(f) A civil action against a foreign state as defined in section 1603 (a) of this title may be brought—

(1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;

(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605 (b) of this title;

(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603 (b) of this title; or

(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.

(g) A civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.

Pleading, FRCP 7-9

FRCP 8- short and plain (for notice)

A. Claims for Relief

Must contain:

1. A short plain statement of jurisdiction (unless the court already has it)

2. A short and plain statement that the pleader is entitled to relief

3. Relief sought (demand for judgment)-alternative types of relief may be demanded

B. Defenses: Form of Denials

1. The pleader shall state (in plain and short terms) defenses to each claim asserted, and admit or deny the allegations

2. If the pleader is without sufficient knowledge or information (to admit or deny), the pleader may so state. In such a case, the court will consider it as if the pleader denied the allegations

3. Denials must challenge the substance of the denied allegations

4. If the pleader intends to deny only a part of an allegation, he shall specify which is true and deny only the remainder

5. Types of denials which a pleader may make:

a. Specific denial (applying only to parts of the pleadings)

b. Complete denial (applying to the entire complaint)

c. General denial (applying to the entire complaint, except paragraphs specified)

C. Affirmative Defenses

1. Types of affirmative defenses:

a. Accord and satisfaction

b. Arbitration and award

c. Assumption of risk

d. Contributory negligence

e. Discharge in bankruptcy

f. Duress

g. Laches

h. License

i. Res Judicata

j. Waiver

k. Estoppel

l. Failure of consideration

m. Fraud

n. Illegality

o. Injury

p. Injury by fellow servant

q. Payment

r. Release

s. Statute of frauds

t. Any other matter constituting avoidance or affirmative defense

2. If the pleader makes a mistake and puts counterclaims as affirmative defenses, the court may treat it as if it were without mistakes

D. Effect of a Failure to Deny

1. Any denials omitted are deemed to have been admitted unless:

a. A responsive pleading was not required; or

b. The omission involved a dispute of the amount of damages claimed

2. Any allegations to which no answer is required (or allowed) shall be taken as denied

E. Consistency of Pleading

1. Each allegation shall be direct and concise (no technical form of pleadings/motions required)

2. A pleader may state as many separate claims as it wants in the pleadings:

a. Claims may be in one count or defense, or as separate ones

b. A relationship between the claims is not necessary

c. If one statement is improper, it does not negate the entire pleading (only improper allegations will be negated)

F. Construction of Pleadings

Pleadings shall be construed so as to promote “substantial justice”

Conley v. Gibson (1957)- “Notice pleading”, complaint should only be dismissed if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (i.e. if the complaint alleges facts that, if true, constitute a cause of action, no dismissal) (pre-civil rights act, a union discriminates against black workers on behalf of an employer)

-should give plaintiff fair notice of what the complaint is and the grounds on which it rests “notice pleading”

American Nurses’ Assn. v. Illinois (1986)- Court finds facts on which plaintiffs might make a claim (nurses sue for pay discrimination)

-A complaint is a form of “trans-substantive pleading”, meaning across areas. Previously, one had to state whether it was in equity, replevin, file various writs, etc. now we lump them all together in a single complaint.

FRCP 9(b)- particularity/heightened standard in cases of fraud or mistake

B. Fraud, Mistake, Condition of Mind

1. Accusations of Fraud or mistake must be stated with particularity (i.e. with specific factual foundation)

2. Accusations of malice, intent, knowledge, and conditions of mind may be alleged generally

C. Conditions Present

1. A denial that a condition precedent has not been fulfilled must be stated with particularity

2. An allegation that a condition precedent was performed may be alleged generally

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (1993)- 5th circuit tries to apply heightened pleading standard in 42 USC 1983 actions where a municipality is being sued, supreme courts says no, the rule says only in instances of fraud and mistake is a heightened pleading required, and by the way you people are idiots (police shoot a woman’s dogs and beat up an elderly cancer patient)

Committee on Children’s Television, Inc. v. General Foods Corporation (1983)- Because we’re in CA, a statement of facts constituting cause of action is sufficient for the consumer protection claim, for fraud, the court did not expect them to regurgitate each commercial, but show a representative sample, further, they had to show damages of individuals. Hence, they were given leave to amend their 4th complaint (sue both under consumer protection statutes and for fraud/misrepresentation for breakfast cereals)-could very easily have been written about frcp 8 and 9

Policy reasons of a complaint: what’s the purpose?

1. Notice,

2. Opportunity to defend under due process,

3. Identify issues,

4. Induce an early settlement/press release/public scrutiny,

5. Deter/screen frivolous claims,

6. Force defendant to answer particular questions (e.g. I say you did x y and z, you then have to say your either did or did not do x y and z),

FRCP 7- court may order a reply to an answer (e.g. D answers qualified immunity, P must now answer with particularity)

A. Pleadings

Allowable pleadings include:

1. The complaint

2. The answer

3. A reply to a counterclaim

4. An answer to a cross-claim

5. A third party complaint (if that party was not an original party under rule 14)

6. A third party answer (if a third party complaint was served)

7. A reply to an answer or third party answer (allowed only upon court orders)

B. Motions and other Papers

1. Requirements for an application for an order

a. Must be in writing

i. Writing requirement will be fulfilled if the motion is stated in a written notice of the hearing of the motion

ii. Writing requirement is not necessary if a motion is made at a hearing or trial

b. Shall state grounds for motions with particularity

c. Shall state relief sought

2. All rules regarding form of pleadings and captioning of rules apply

3. All motions must be signed in accordance with rule 11

C. Demurrers, Pleas, etc., Abolished

Demurrers, pleas, and exceptions (for insufficiency of a pleading) shall not be used

Schultea v. Wood (1995)- Complaint does not have to be particular, but your response to their qualified immunity defense under rule 7 must be particular (cop gets demoted for investigating politician)

Pleading in the Alternative, frcp 8 e

n. cannot plead in the alternative facts you know are not true

McCormick v. Kopmann (1959)- When P does not know what the truth is, P may plead different facts in the alternative, even though the two are mutually exclusive (auto accident with a truck, widow is pleading in the alternative that some bar owners were negligent in serving her husband alcohol and letting him drive, and that the truck driver hit him and there was no contributory negligence, truck driver loses)

Defendant’s responses to pleading:

Motions:

1. 12 (b)(6)-motion to dismiss for failure to state a claim on which relief can be granted

2. Summary judgment

3. Procedural mistakes (improper venue, no personal JX, etc.)

4. 12 (e)- motion for a more definite statement\

5. 12 (c)-motion for judgment on the pleadings, because there is no material dispute of fact for a jury to find

Rule 12 (b) How Presented

I. All defenses must be made in answer except for:

1. Motion for lack of subject matter jurisdiction

2. Motion for lack of personal jurisdiction

3. Motion for improper venue

4. Motion for insufficiency of process

5. Motion for insufficiency of service of process

6. Motion for failure to state a valid claim upon which relief can be granted

7. Motion for failure to join a party under rule 19

8. Other defenses to claims not requiring an answer

II. The above defenses are made in a pre-answer motion

Rule 12 (h)- Waiver or Preservation of Defenses

(Waived if not disputed in first response to complaint)

1. Objection to

a. Lack of personal jurisdiction; or

b. Improper venue; or

c. Insufficiency of process; or

d. Insufficiency of service will be waived if:

i. Omitted from consolidated motions (i.e. if you make one you must make all); or

ii. Not in responsive pleadings, in a motion or in an amendment

2. Motions which may be made at trial or in pleadings:

a. Failure to state a valid claim

b. Failure to join a third party under rule 19

3. Motion for lack of subject matter jurisdiction may be made at any time (even after judgment)

Fuentes v. Tucker (1947)- Evidence that is not relevant to any issue raised in the complaint should not be admitted into trial (guy runs over two kids, admits to it in his amended answer, judge allows P to go ahead with trial and introduce evidence of intoxication and surrounding circumstances in spite of D’s protests, appellate court decides that this type of evidence is irrelevant in a wrongful death case and therefore should not have been allowed, but it was a harmless error and therefore no new trial)

-prof’s note: pleading defines the issues

Zielinski v. Philadelphia Piers, Inc. (1956)- Equitable estoppel-where a highly misleading answer causes P to miss statute of limitations, court forces in equity D to defend the suit (equipment collides on a pier injuring someone, he sues PP, the employee who caused the accident had previously been employed by PP but they had, unbeknownst to him, transferred him to a cargo company, the insurance claim was against this other company, but PP does not alert plaintiff to the fact that they’ve sued the wrong person, statute of limitations tolls, and judge says PP needs to defend the suit)

Gomez v. Toledo (1980)- In cases of qualified immunity, D has the burden of pleading good faith and therefore qualified immunity (officer gets discharged after ratting out coworkers, superintendent raises qualified immunity, is the burden of pleading on P to plead bad faith and therefore no qualified immunity, or does the D have the burden of pleading good faith?)

Ingraham v. United States (1987)- D must plead in their answer under rule 8c, therefore it is waived (government physician negligently injures a kid, gets huge judgment, after the trial they bring up a statute that caps damages, waived because they didn’t bring it up in their answer?)

*prof says the gist is “if you don’t plead it when you are supposed to or amend it and get it in, you have to live with the consequences”

FRCP 15

A. Amendments

1. Parties have a right to one amendment:

a. Before the answer or responding pleading is served

b. In a non-responsive pleading, 20 days after the pleading is served

2. Otherwise, amending party must:

a. Request a “leave of court” to amend the pleading (court must consent when justice so requires); or

b. Obtain written consent from the adverse parties

3. Answering amendments must be done within the longer of:

a. 10 days after service of the amendment; or

b. The time remaining within the original 20 day response period (from the initial pleading)

B. Amendments to Conform to the Evidence

1. Issues expressly or impliedly consented to by parties are considered to have been raised in pleadings (although they never were)

2. Parties may raise a motion to amend the pleadings (to conform to the evidence) at any time, even after judgment

3. If a party objects to amendments, new evidence, or issues not explicitly included in pleadings, the court may still grant/allow it if it will promote justice (and the other party cannot show prejudice)

4. The court may grant a continuance to allow the objecting party to meet the evidence

C. Relation Back of Amendments

Amendments will be considered to relate back to the date of original pleading if:

1. Permitted by the law providing for the statute of limitations in the case; or

2. They are related to the original claims (arising out the same conduct, transaction or occurrence); or

3. There were misidentified parties in the original claim. Such amendments will relate back only upon reasonable notice if

a. A party has received notice of the action and will not be prejudiced in maintaining a defense on the merits; and

b. The party knew or should have known that the action would have been taken against her, but for the fact that there was a mistake as to her actual identity

D. Supplemental Pleadings

1. Upon motion, pleadings may be amended for events occurring after service of the original pleadings if:

a. Reasonable notice is given; and

b. The terms are just

2. Supplemental pleadings must set forth the transactions or events that have happened since the date of the original pleading was drafted

3. Permission to supplement a pleading may be granted, even though the original pleading has a defective statement claiming relief or defense

4. If the court deems it advisable, it may order the opposing party to respond within a specified time

Barcume v. City of Flint (1992)- Claims do not relate back if D was not on notice that this issue was likely to come up, this is shown if allowing the amendment would require D to do extensive investigation (a bunch of women file a complaint against the police dep’t for discrimination under §1983, then want to amend their complaint after discovery to include sexual harassment under the same act)

Nelson v. Adams USA, Inc., et al (2000)- Due process affords individual a right to defend themselves, so no adding someone post judgment unless it allows them to do that (Ohio Cell Products sues Adams for patent infringement, Adams loses and gets awarded fees against OCP, finds out it’s an LLC with no money and wants to amend the answer post judgment to include the owner of OCP, no adding parties basically)

Sanctions other than rule 11

1. FRAP 38: in federal appellate courts, allows to assess damages and costs for frivolous appeals

2. 28 USC 1927: in federal courts, when an attorney multiplies proceedings unnecessarily, he may have to pay fees/costs/expenses of the other side

3. Inherent power: see e.g. chambers case, can sanction attorneys for basically whatever they want, but specifically misconduct, acting in bad faith, contempt, etc. applies to all courts

FRPC 11

-triggered on signing, filing, representing or advocating

-designed to “deter the worthless stuff”, however may also deter risky but good pleadings (hopeless vs baseless distinction)

Reasons for rule 11:

1. Respect for court

2. Speed/efficiency (deterrence)

3. Make litigants whole (mitigation of harm)

(B)

1. Improper purpose (odd one out, can have dual purpose)

2. Inadequate legal basis

3. Inadequate factual basis

4. Denial of facts

A. Signature

1. Signature must be made by the lawyer; if there is no lawyer, pleader must sign

2. The signer must include his address and telephone

3. No need to accompany pleading with an affidavit (unless specifically provided by another rule or statute)

4. If signature is missing, court may strike the pleadings, unless it is signed promptly after such omission is brought to the pleader’s attention

B. Representations to the Court

A signature implies that, to the best of the signer’s knowledge, with reasonable inquiry, the pleading is:

1. Made with a Proper Purpose-not to harass or cause unnecessary cost or delay

2. Warranted by Existing Law (or a non-frivolous argument to change existing law)

3. Well grounded in fact- likely to be reasonably supported by facts

4. Based on Evidence- Denials of factual contentions are based on evidence or reasonably based on lack of belief/information

C. Sanctions

If rule 11(b) is violated, the court may impose sanctions on lawyers/signers:

1. On Motion:

a. Motion for sanctions must be made separately from other motions

b. The motion must state violation of rule 11b

c. The motion may only be filed if pleading is not corrected within 21 days of service

d. The court may award the winner reasonable expenses and fees incurred in making or opposing the motion

e. Law firms will be held jointly liable-absent exceptional circumstances

2. On the Court’s Initiative:

a. If the court initiates the sanctions (by order to show cause), the burden of proof will fall on the pleader to show that it is not within violation

n. judge should impose sanctions based on what is sufficient to deter

D. Inapplicability to Discovery

Rule 11 does not apply to:

1. Disclosures

2. Discovery requests

3. Responses

4. Objections

5. Motions subject to provisions in rules 26-37

Pre-1993 Rule 11

1. Must impose sanctions (change of standard of review, now dramatically decreased work for app courts)

2. No 21 day safe harbor

3. Law firms not held responsible for associate’s mistake

Fragante v. City and County of Honolulu (1987)- Improper purpose under R11, court said no (guy was denied job at dmv because of heavy Filipino accent, asserts discrimination under title 7)

Saltany v. Regan (1989)- Rule 11 violation sanctions should be imposed whether the court defines the violation as falling within rule 11 or not (Libyans sue U.S. and England for bombing them, app court found that the district court, who found there was no rule 11 violation despite the case not being well grounded in law, had found a rule 11 violation implicitly)

Saltany v. Bush (1992)- Dissent says an intervening change in law to the extent that it establishes a “clearly erroneous” review standard should be considered in appeals (majority affirmed)

Business guides- Rule 11 imposes an objective standard of reasonable inquiry on represented parties who signed papers or pleadings, whether signatures were voluntary or mandated. (one of the big 4 supreme court cases on R11, and one of the 2 that has not been reversed. Business plants seeds and then sues other guides for copying, attorneys didn’t bother to check accuracy and it turns out 9 of 10 supposed seeder entries were correct)

Kramer- Rule 11 must not bar the courthouse door to people who have some support for a complaint but need discovery to prove their case (guy hires an investigator for claim that sheriff and parents in law were conspiring to evict and deprive of property)

Discovery

Policy reasons for/against discovery:

1. Shape the case, give knowledge of relevant facts

2. Efficiency

3. Finality

4. Fairness

5. Certainty

6. Truth/accuracy

7. Undermines adversarial system (mandatory disclosure)

8. Loyalty to client

n. In 2000, change from discovery allowed for anything “relevant to the subject matter” to “relevant to the claim or defense of any party” (btw, in notice pleading, you don’t have to specifically state a claim, just facts on which a claim can be based, however it’s going to be harder to do discovery if your claims are not specifically defined)

FRCP 26

A. Required disclosures

1. Initial disclosure must provide

a. People (name, address, contact info, subject matter) likely to have discoverable information

b. Relevant documents, data and tangible things in the possession, custody or control of the adversary

c. Materials from which computation of damages arose unless privileged or protected

d. Insurance agreements which may indemnify or pay part of the judgment

B. Discoverable scope and limits

1. Anything not privileged relevant to claims or defenses…?

2. Limitations

a. Unreasonably cumulative or duplicative, or obtainable from a more convenient source

b. Party seeking has had ample opportunity to obtain the information

c. The burden or expense outweighs the likely benefits, taking into account needs of the case, amount in controversy, parties resources, and the issue at stake

3. Trial preparation materials (work product)

C. Protective orders

1. May be issued to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense

FRCP 37

(c) Failure to Disclose

1. Penalty for a party that does not disclose information (i.e. the info required under rule 26a):

a. The non-disclosing party shall not be allowed to use the undisclosed information as evidence at trial or at a hearing

b. Sanctions may be imposed if:

i. There is no substantial justification not to disclose the information; and

ii. The failure to disclose was harmful

c. The court may also impose other sanctions, including:

i. Payment of reasonable expenses and/or attorney’s fees caused by failure

ii. Any action authorized under 37b2a, b, and c, which are

1. Conclude that matters sought to be discovered by a party are to be found in that party’s favor

2. Refuse to allow the disobedient party to support or oppose designated claims or defenses

3. Render a default judgment or strike a pleading

iii. Informing the jury of the failure to disclose

Chalick v. Cooper Hospital, et al. (2000)- Mandatory disclosure example, frcp 37 can be used to prevent D from objecting to rule 15 motion to add a party (guys son dies, names lots of john does, finds out after statute of limitation and during discovery the name of a doctor who attended the son, D fails to give address and relevant info for this particular doctor)

Blank v. Sullivan & Cromwell (1976)- Discoverable information includes not only info relevant to the claim or defense of any party and admissible at trial, but also information reasonably calculated to lead to the discovery of admissible evidence (women attorneys looked for jobs and were refused at all firms, so they sued for discrimination and asked in interrogatories for information on how many women made partner and such. Court held that it was reasonably likely to lead to admissible information)

Vinson v. Superior Court (1987) CA- Absent extraordinary circumstances, sexual history should not be probed because it would deter sexual harassment and assault claims. Generally P cannot have counsel present during a psychological exam because it would turn into a chaotic deposition (old woman applies for a job and guy sexually harasses her, then gets her fired from another department, the D wants her to undergo a mental examination because she’s claiming emotional distress, and she wants the court to either forbid it, or else to tell D they can’t ask questions about her sexual history and the like, and she wants an attorney present)

Discovery:

1. What is sought?

2. Was it properly done? (procedural niceties)

3. Discoverable or not? (general rule=anything relevant to claims/defenses)

a. Exceptions/limitations: Privileged, Work product, 26(b)3

n. Work product is NOT a privilege, just an exception for materials prepared in anticipation of litigation (can be discarded if the other side has a substantial need and us unable to get it themselves)

Hickman v. Taylor (1947)- basically pre-26(b)(3) adopted in 1970 to follow this case (a tugboat sank, tugboat company saw a lawyer prior to suit, who interviewed the employees who witnessed, in a later lawsuit, D wants the lawyers notes from those interviews)

Differences between Hickman and 26(b)3:

1. Under Hickman, only attorney work product was protected, but under 26b3 any work product by or for the party (including the client, consultants, etc.)

2. Hickman covers intangibles (memory), 26(b)3 is written in such a way to only include documents and tangible items

Attorney client privilege:

1. Protects communication about legal advise/services, whether in preparation of litigation or not

2. Protects information from atty to client and from client to atty

3. Waived if illegal

4. Waived if communicated to a third party

5. Extends beyond the grave (swidler & berlin)

Upjohn Co. v. United States (1981)- atty-client privilege extends only to communications, not to facts. Work product can only be discoverable by a much stronger showing of need and unavailability by any other means (case with atty where the co had asked advise about some fraudulent payments)

-discarded control group test, which says that only those authorized to speak for corporation qualify as client. Instead, court decides anyone working at corp is covered.

Helpful note: at the time of Upjohn, work product was a subset of atty/client privilege

Opinion work product: mental impressions of lawyer, stronger protection than regular work product

Discovery

Experts

FRCP 26(b)4:

(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.

(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Coates v. AC&S, Inc. (1990)- In extraordinary circumstances, non-testifying expert’s findings may be discoverable (judge restricted experts to a few where the parties sent tissue samples to pathologists, parties wanted to discover the findings of the other side)

n. normally cannot discover information about non-testifying experts

Rozier v. Ford Motor Co. (1978) 5th circuit app- Rule 26(e)2 says if answer to an interrogatory changes, you have a duty to update (lawsuit about car that exploded due to fuel tank placement, P asked for any reports relating to alternative placement, Ford said there weren’t any, but later doc came out, new trial ordered)

NCS v. Cisco (2004 note case p499)- under rule 37(c), failure to disclose may be sanctioned by instructing the jury of the party’s behavior (“already provided customer list” case, where it was strongly implicated that they pre dated docs when they finally handed them over)

Paramount Communications v. Viacom, Inc. (1994)- (case w/attorneys interrupting depositions and being generally rotten)

Settlement

Rule 68. Offer of Judgment

At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

Marek v. Chesny (1985)- When costs are shifted under rule 68, “costs” include attorney fees, despite statute which says defendant pays plaintiff’s atty fees if D loses. Also, settlement offer does not have to specify what portion of offer is for fees as opposed to compensation (Rule 68 says if judgment is less than prior settlement offer, then P will have to pay their own costs incurred after settlement offer)

-Funny Brennan dissent, convincingly says the majority is wrong

|§ 2072. Rules of procedure and evidence; power to prescribe |

|Rules enabling act |

|(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United |

|States district courts (including proceedings before magistrate judges thereof) and courts of appeals. |

|(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or |

|effect after such rules have taken effect. |

|(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title. |

Dismissal as a matter of law

summary judgment

FRCP 56

(c) There must be no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law (movant has initial burden of showing the absence of a genuine issue of material fact, if burden is not met, nonmovant doesn’t need to respond. If it is met, then a response is needed)

Adickes v. S.H. Kress & Co. (1970)- In summary judgment cases, defendant must negate the claim/defense of the nonmovant (white woman is not served at restaurant because she’s eating w/ black kids and is later arrested)

Celotex Corp. v. Catrett (1986)- A conclusory assertion is insufficient to support a motion for summary judgment. Must affirmatively negate the other sides assertions using the record (Husband died, wife suing company claiming this was caused by asbestos, documents offered as proof were inadmissible hearsay)

Matsushita Electric Indus. Co. v. Zenith Radio Corp. (1986)- Plaintiff must be able to show the allegations are more likely than not, and if the facts in the light most favorable to the plaintiff cannot support this, summary judgment is appropriate (US TV manufacturers sue Japanese TV manufacturers for conspiring to keep artificially low prices in the US and drive competitors out of business)

Anderson v. Liberty Lobby (1986)- judges inquiry asks whether reasonable jurors could find a preponderance of the evidence that the plaintiff is entitled to verdict (check Brennan dissent)

Fill in notes here 2/5/07

Directed verdict=judgment as a matter of law (directed verdict sounds too much like judge is vetoing the jury) FRCP 50(a)

JNOV=renewed judgment as a matter of law-FRCP 50(b)

right to a jury trial

Markman v. Westview Instruments, Inc. (1996)- The portion of a patent document that defines the scope of the patentee’s rights (including terms of art) are exclusively a question of law reserved to the court (7th amendment right to a jury trial implicated in IP case to determine the meaning of a term of art, judge decides the issue)

n. equitable remedies are decided by the judge, typically causes of action in law go to the jury

Gallick v. Baltimore & Ohio R.R. Co. (1963)- On review, it is the duty of the court to attempt to harmonize the jury’s special verdict answers to make them consistent if possible (stagnant pond with the bug bite that led to the amputation of the guys legs)

Galloway v. United States (1943)- Court must draw all favorable inferences when considered JMOL, but the court is not required to speculate favorable circumstances (one with the soldier who goes crazy, the widow is alleging he was crazy continuously for 8 years, but offers no evidence)

Reid v. San Pedro LA & Salt Lake RR (1911)- When burden is on plaintiff, must show it is more likely than not (plaintiff loses here) (statute says RR does not have to pay if it comes through gate, but is responsible if it comes through fence, gate was open and fence was in disrepair)

Reeves v. Sanderson Plumbing Prods., Inc. (2000)- (company fires an older guy, he sues under the ADEA, he must show intentional discrimination, court finds that his prima facie case in additional to evidence introduced to show employers argument is pretextual is sufficient for jury to find for plaintiff)

Flynn v. Goldman Sachs (1993)- When considering msj, draw all positive inferences in favor of non-moving party, disbelieve testimony of movants witnesses, but absent some affirmative evidence, all the positive inference in the world won’t help (Flynn alleges she was not promoted and fired because she was a woman, but fails to back it up with anything)

Trying to get rid of a case:

1. 12b6 motion to dismiss (court may grant MTD with leave to amend or not)

2. 5b motion for summary judgment

3. 50a judgment as a matter of law (directed verdict)

4. 50b renewed judgment as a matter of law (jnov)

a. Made within 10 days of judgment

5. 59 motion for a new trial

a. Made within 10 days of judgment

b. If granted, may not appeal until new trial judgment is entered

6. FRAP Appeal

a. Made within 30 days (where to file it depends on whether it’s an appeal as a matter of right or not)

7. 60 Relief from judgment

a. Made within a reasonable time for reasons 1 2 and 3 (mistake new evidence or fraud), but not more than a year post judgment

8. Interlocutory appeals

a. In the middle of trial (from something not final), typically need someone’s permission

Sanders-El v. Wencewicz (1993)- New trials granted for prejudicial error, judge’s ruling on appeal reviewed for abuse of discretion (defense counsel reads criminal history from a large stack of paper and dramatically drops it on the table. Judge had ruled no admission of criminal history not resulting in convictions as evidence)

Standard to grant motions?:

1. Judgment as a matter of law: no reasonable juror

2. New trial: against the great weight of the evidence

Durfee v. Duke (1963)- Once a party has contested jurisdiction and the question has been fully and fairly litigated, the matter is res judicata (action for quiet title for land on the bank of the Missouri river, Nebraska says it’s their land and takes jurisdiction, loser contests jx after judgment)

Kupferman v. Consolidated Research & Mfg. Co (1972)- under rule 60b (savings clause), independent actions for relief from judgment outside the year sol may only be granted for fraud upon the court (the one with the release one atty knew about and the other didn’t, first guy credibly says he didn’t realize the release could be a complete defense)

preclusion

Claim preclusion bars re-litigation of issues arising from the same transaction or occurrence

Reasoning:

1. Repose

2. Finality

3. Collateral estoppel

Pierce v. Cook & Co. (1975)- Under rule 60b6, relief from judgment may be granted where it is appropriate to accomplish justice (different actions brought by different people for the same car accident, different results)

Ackerman v. United States (1950)- A strategic decision not to appeal will not give rise to a grant of relief from judgment (immigration case, one guy appeals and wins, another guy tries to get judgment relief on this basis)

Claim preclusion (“res judicata”) vs Issue preclusion (“collateral estoppel”)

-for clarity, just refer to the two as claim and issue preclusion

1. Claim preclusion: holds you responsible for things you did not litigate but could have related to the same transaction or occurrence

2. Issue preclusion: holds you responsible only for the stuff you actually litigated to conclusion

Conditions of claim preclusion:

1. Valid final judgment in forum 1, shown by:

a. Notice

b. Subject matter jurisdiction

c. Personal jurisdiction

d. Same parties

e. Same claim

McConnell v. Travelers Indemnity Co. (1965)- Because the husband’s claim for Wife’s medical expenses were dismissed with prejudice, his damages and medical expenses filed in federal court were also dismissed under res judicata, because it was the same claim and you can’t bring it twice (husband and wife bring different claims for same car accident, husband joins in wife’s suit to recover $ he paid for her medical expenses, but under an LA statute he must have brought it in his suit under community property law, husband therefore has his own claim for his wife’s damages dismissed w/ prejudice so he can bring it in his suit)

Consumers Union of United States v. Consumer Product Safety Commission (1978)- The burden is on the party suing to join all interested parties, and therefore prevent re-litigation of an issue by different parties in the future (reverse FOIA suit for this information was previously brought in a different court, and the gov’t is claiming preclusion in this FOIA case)

Federated Department Stores v. Moitie (1981)- Un-appealed judgments are final, despite being incorrect or resting on a principle later overruled (Moitie and some others sue in district court under federal law for antitrust violation, after losing, everyone else appeals, but Moitie brings basically the same case under state law claims in state court instead. 9th circuit says yes because the people who appealed were successful and it’s only fair, sct says no)

n. When determining whether a claim is precluded, use the law of the first court you filed in

Martino v. McDonald’s System, Inc. (1979)- A party must bring up counterclaims and issues in the initial proceeding or else lose the ability to do so (Martino’s son buys burger joint in violation of franchise agreement, in the lawsuit the parties settle, enter a consent judgment and sell the franchise back to McDonald’s, Martino later sues saying the contract violates the Sherman act resulting in this unfavorable consent judgment)

Commissioner of Internal Revenue v. Sunnen (1948)- A prior determination is not conclusive where the situation is vitally altered between the first and second judgments (guy gifts patent license contracts to his wife, irs determines at some point some of these are ok, later determines all royalties are part of taxable income of husband)

Exceptions to general rule of issue preclusion:

1. Party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action

2. The issue is one of law and

a. The two actions involve claims that are substantially unrelated, or

b. A new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of laws

3. A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them

4. The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action

5. There is a clear and convincing need for a new determination of the issue

a. Because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial actions

b. Because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or

c. Because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action

Allen v. McCurry (1980)- The civil rights act does not offer an exception to the doctrine of issue preclusion, and therefore the final judgment in prior courts on any issue precludes relitigation (heroin bust, cops do protective sweep and find drugs, lower court allows some evidence but will not allow other evidence, in later civil rights actions, does the lower court’s suppression and admission preclude argument about the search and seizure?)

n. mutuality=same parties. It used to be that both claim and issue preclusion were only brought up when you had mutuality, but in 1942 the California state court (Traynor) said it’s dumb to require mutuality, then in the Blonder-tongue case in 1971, the Supreme Court said mutuality is not required (both were for defensive collateral estoppel, and defensive only was the rule until parklane came around)

Parklane Hosiery Co. v. Shore (1979)- Offensive collateral estoppel can be used at the discretion of the court, who should consider whether plaintiff could have easily joined the prior action and whether it will be unfair to the defendant (SEC brought an action against company for materially false proxy statement put out and won, plaintiff’s sued the same company for the same thing and claimed collateral estoppel on the issue of whether it was materially false)

Montana v. United States (1979)- Where a party is in privity in one lawsuit, such that they cannot claim no fair chance to defend their interests, then issue preclusion may apply (Montana has a law that taxes public, but not private contracts, in one case the US funds and directs suit, this case is brought on basically the same grounds, but by the US for their own claim)

Brake v. Beech Aircraft (1986)- A new party may only claim issue preclusion where the issue to be precluded was “necessarily decided” and the situations are identical (widows sue aircraft manufacturer after husband’s die in crash, try to claim preclusion based on a case where beech was being sued for negligent manufacture and jury entered general verdict against them)

subject matter jurisdiction in a dual court system

The Rules Decision Act, 28 USC §1652: The laws of the several states, exception where the constitution or treaties of the United States or acts of congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United Sates in cases where they apply

Swift v. Tyson (1938)-Justice story says the rules decision act only requires him to apply a state’s statutes, rather than judicial decisions/common law, and instead judges must look to principles from many states (sounds a lot like plato, the law exists somewhere, and a judge merely find the “right” answer, the law should not be one thing in Rome and another in Athens)

Erie R.R. Co. v. Tompkins (1938)- federal courts reached by diversity jurisdiction must apply state law w/ regard to substantive issues, and federal law w/ regard to procedural issues (guy gets hit by train, sues RR co, RR co gets off under state law, but has liability under federal common law-overturns swift v. tyson)-did away with concept of federal common law

n. Erie lives in §1332 scenarios

Aims of Erie:

1. To prevent forum shopping

2. To avoid different results in identical cases

n. FRCP promulgated by the Supreme Court in 1938

Cities Service Oil Co. v. Dunlap (1939)- Federal courts must apply state law when looking at a substantive rule, AND something that relates to a substantive right/enforcement of state rights (burden of proof in this case)

Examples of substantive and procedural questions found by court:

1. Substantive

a. Standard of care

b. Conflict of laws

c. Statute of limitations

d. Burden of proof

e. Agreement to arbitrate

2. Procedural

a. Burden of pleading

b. Discovery-physical examinations

c. Venue transfers and effect of forum selection clause

Rules Enabling Act, 28 USC §2072: The Supreme Court shall have the power to prescribe, by general rules, forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts of the United States in civil actions. Such rules shall not abridge, enlarge, or modify any substantive right and shall preserve the right of trial by jury…

Hanna v. Plumer (1965)- Court implements a “modified outcome-determinative” test, which is basically something that would lead to forum shopping or inequitable administration of laws. The question is really whether a rule is substantive or procedural, and you’ll have a tough time arguing the FRCP are not procedural (guy is trying to get out of service of process, claiming frcp doesn’t apply because the rule contradicts the state rule, and the application is outcome-determinative)

Hanna analysis per glannon:

1. If conflict between state law and federal practice, analyze under part 1, modified outcome determinative

a. Will it lead to forum shopping or inequitable administration of laws?

2. If conflict between state law and federal statute or rule, analyze under part 2, substantive or procedural

a. Is it arguably procedural? Does it abridge enlarge or modify a substantive right?

Choice of law: Under Klaxon, the federal court must do what the state court it sits in would do (e.g. If I sue in the NDCA, and CA state law would apply NY law, then the NDCA judge applies NY law)

transfer and removal

-Transfer will effect a change of venue, but not law per the van dusen case

-Either party may try to transfer

Fill in here with removal and venue transfer information…

28 USC § 1441: removal to federal court and remand

-a removal (filed within 30 days) is just a form filed with the court and is not reviewed. If there’s something wrong with it, the plaintiff has an obligation to challenge with a motion to remand (then if it’s remanded there’s no appeal of that decision, and if the motion is denied then the plaintiff can appeal that after trial)

Caterpillar, Inc. v. Lewis (1996) An improper removal to federal court may be overlooked if diversity is met at the time of judgment (personal injury claim with insurance company, tortfeasor, etc. where non diverse party settles out before judgment)

28 USC §1404 and 1406, venue transfer (n can only transfer to a sister court, meaning no transfer to Bolivia or state court unless it started there)

-if case is improperly filed in federal court, may not remand, may only dismiss w/o prejuduce

§1404 transfer can happen:

1. For convenience of parties and witnesses

2. On motion, consent or stipulation of the parties

3. A district court can order an action to be tried anywhere within the division in which it’s pending

§1406

a. The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

b. Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.

c. As used in this section, the term “district court” includes the District Court of Guam, the District Court for the Northern Mariana Islands, and the District Court of the Virgin Islands, and the term “district” includes the territorial jurisdiction of each such court.

Republic of Bolivia v. Phillip Morris Companies, Inc. (1999) Ridiculous opinion by Kent, court may transfer venue of its own accord if justice would be better served in another venue, and may only be transferred somewhere the case could have been filed in the first place (Bolivia sues Phillip Morris in some small district court in Texas)

supplemental jurisdiction

Article III § 2 grants the federal courts subject matter jurisdiction over a few categories of cases. The Gibbs court reasoned that because the constitution granted feds the power to hear “cases,” that included claims within the cases it otherwise would not have jx over.

28 USC §1367

(a) Except in (b) and (c), if the court has original jx over a claim, it also has supplemental jx over claims so related that they form part of the same case or controversy (includes joinder and intervention)

(b) In 1332 claims, federal courts cannot exercise supplemental jx over claims by the plaintiff (not the third party plaintiff) against parties brought in under FRCP 14, 19, 20, or 24; or over people who are proposed to be brought in under FRCP 19 or 24 if they would break diversity (although they need not meet the statutory amount)

(c) The district courts may decline to exercise supplemental jurisdiction over a claim if:

1. The claim raises a novel or complex issue of State law,

2. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

3. The district court has dismissed all claims over which it has original jurisdiction, or

4. In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

United Mine Workers v. Gibbs (1966)- Pendent claims may be added at the discretion of the court, so long as they arise from a common nucleus of operative facts (wanted to bring state claim in addition to federal in federal court)

n. It’s thought that §1367(a) is meant to codify Gibbs, and therefore the same standard should be used

3 Part Analysis:

1. Constitutional power to hear the claim (i.e. case or controversy)? Gibbs test:

a. Is there a proper claim within the jx of the federal court?

b. Does the supplemental claim arise out of the same nucleus of operative facts?

2. Statutory grant to hear the claim?

a. Same case or controversy? (exception for diversity cases under §1367b)

3. Exercising discretion, should the claim be heard?

a. 1367c

Ancient history:

Pendent and Ancillary jurisdiction:

1. Pendent jurisdiction: state claim branch coming off of a federal trunk (Cases arising out of a common nucleus of operative facts)

2. Ancillary jurisdiction: state counter claim for federal case already in court

a. Compulsory counter-claim (arises from same transaction or occurrence): automatically have supplemental jx

b. Permissive counter-claim (arises from a different transaction or occurrence): Must be part of the same case or controversy to be covered under supplemental jurisdiction

n. Pendent=state and fed in complaint, ancillary=counter claims cross claims and impleader

joinder of parties

FRCP 20, Permissive joinder:

a) Persons can join as plaintiffs if they assert a right to relief

i. Arising out of the same transaction or occurrence (or a series of transactions or occurrences), AND

ii. Having a common question of law or fact

Mosley v. General Motors Corp. (1974) Joint parties may have diverse results arising from the same general policy (bunch of black workers sue GM and the union for discrimination jointly, district court severs causes of action and orders them brought separately, but allows interlocutory appeal)

FRCP 19, Compulsory joinder:

a) If person may be served (i.e. personal jx) and won’t rob court of subject matter jx, party will be joined if

a. Complete relief can’t be accorded in the party’s absence

b. Person claims an interest in the suit and the absence would

i. Impair or impede absentee’s ability to protect their interests

ii. Leave persons already parties at risk of incurring multiple or inconsistent obligations because of it

b) If the absentee can’t be made a party court will determine whether in good conscience and equity case should continue, takes into account

a. Extent to which judgment entered in absence might be prejudicial to the absentee or the current parties

b. The extent to which such prejudice could be lessened or avoided

c. Whether judgment rendered in person’s absence would be adequate

d. Whether plaintiff will have adequate remedy if action is dismissed for nonjoinder

Hsieh says ask:

1. Are they needed?

2. Can we join them? (personal jx, diversity jx, etc.)

3. Are they indispensable?

Temple v. Synthes Corp. (1990) Joint tort-feasors are not necessary parties under advisory committee notes to rule 19b (guy has plate and screw device implanted in his back and it breaks, he sues manufacturer in fed and doctor/hospital in state court)

Helzberg’s Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc. (1977) The fact that a party may be affected by the outcome of a case does not make them an indispensable party, where none of their rights or obligations will have been adjudicated as a result of the current proceeding (Valley west made a deal with Helzberg that they would not allow more full line jewelry stores to move in, they contract with Lords to do this, Helzberg sues for injunction, and Valley west tries to join Lords)

impleader

FRCP 14 When a plaintiff can bring in a third party

A defending party as a third party plaintiff may cause a summons and complaint to be served upon a person not party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff’s claim against the third party plaintiff (usually insurance company)

Principles:

1. Third party plaintiff’s claim must be derivative of the main suit, but once he has a derivative claim, he may add additional unrelated claims under rule 18a

2. A defendant may only implead parties who may be liable to the defendant, not parties responsible for the original plaintiff’s injuries

3. Once impleaded, a third party defendant may assert claims against the plaintiff arising out of the same transaction or occurrence

4. A third party defendant may attempt to defeat either the original plaintiff’s claims against the defendant, or the third party plaintiff’s claims against himself

5. Court has discretion to allow or not

6. Impleader does not affect the jx or venue of the original claim, but court must have subject matter jx over the new claim (usually through supplemental jx)

Toberman v. Capas (1992) A third party complaint may not set forth a claim of a third party defendant’s liability to the plaintiff. It must set forth a claim of secondary liability, such that, if the third party plaintiff is found liable, the third party defendant will be liable to him/her under a theory of indemnification, contribution, or some other theory of derivative liability recognized by the relevant substantive law (sues for loss of consortium and stuff after a motor vehicle accident, defendant wants to implead 2 parties whose fault it really is and whom he would seek indemnification from)

United States v. Joe Grasso & Son, Inc. (1967) Impleader is limited to situations where the existence of potential liability in the third party defendant is dependant upon the outcome of the main claim (Grasso, ship owner, seeks an employment tax return from the US, US tries to implead captains of the ship under the theory that either Grasso or the captains owe employment taxes for the crew)

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